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Your Weeds Are Beautiful but They're Also Illegal, Posner Says

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By Casey C. Sullivan, Esq. on October 06, 2015 11:57 AM

You may love the sight of dandelions or want to cover your lawn in crabgrass. Maybe bunches of native wildflowers make your heart sing, while sculpted hedges and pedigree roses fail to impress. Well, sorry Mary Mary quiet contrary: your garden isn't allowed to grow that way in Chicago. Unconventional green thumbs can run afoul of the city's weed ordinance, which can lead to daily fines of up to $1,200.

And that's all fine and constitutional, according to a recent Seventh Circuit opinion by Judge Richard Posner. While the court upheld Chicago's ordinance against a constitutional challenge, Posner also pollinated his opinion with photos of flowers and recognized that, in some cases, the humble weed deserves horticultural -- and constitutional -- respect.

That's One Expensive Dandelion

Chicago's weed ordinance requires property owners to keep all weeds on the property under ten inches tall, on average. Fines run between $600 to $1,200 a day. A weeds is, of course, undefined by the ordinance.

When Discount Inn was fined for violating the ordinance, as well as Chicago's fencing ordinance, it sued, arguing that the law violated the Eighth Amendment's prohibition on "excessive fines" and the First Amendment.

A Rose by Any Other Name ...

The Seventh Circuit acknowledged some problems with the weed ordinance. There is, of course, the difficulty of determining the average height of all weeds on a property. But more importantly, there is a question of whether the law accomplishes a substantial social purpose. Sure, weeds can obscure views, contribute to allegories, or "harbor rodents." But so can all plants and flowers.

Indeed, there's little to separate a weed from a native plant, according to the Seventh Circuit. Both can propagate on their own and mature without human aid. But, given a weed's invasive nature, protecting against them with high fines is justified, the Court held.

(Once again, Posner cites Wikipedia as a source. He's now cited the open-source encyclopedia for decisions touching on weeds, heart burn, and anal fissures, among other topics. Are there no more authoritative resources on the Internet, or do Posner and his clerks just go to the first result on Google?)

Posner Gets in the Weeds

Posner spends several pages ruminating on constitutional and horticultural arguments. For example, the weed ordinance could prohibit "beautiful and nondestructive" native plants, violating the Inn's right to expressive activity under the First Amendment. To illustrate this point, literally, the opinion includes a photos of a weed-y seeming community garden full of native plants, a manicured lawn with native Asters, and a vacant lot filled with wildflowers.

How is anyone to distinguish between the dandelion-strewn neglected lawn and the cultivated milkweed garden? Though weed is undefined by the ordinance, Chicago regulations label weeds as plants which are "not managed and maintained" by the property owner -- which, the court notes, encompasses all plants, even trees. How does one maintain an established tree? A re-seeding garden of native perennials?

"Though plants do not speak," they are not excluded from First Amendment protections, the court writes, so long as a garden is minimally expressive. But, Discount Inn's arguments still fail, since it could show no expressive purpose that the weeds achieved. Even Duchamp at least signed his urinal, making it art, the Seventh writes. "But Discount Inn does not claim to have added anything to the weeds that grow in its lots -- not even a name."

A Side Note to Practitioners

Thinking about staying a bit at the Discount Inn? Good luck with that. As Posner notes, the information about the Inn is hard to find, even in the court record:

An oddity of this case is that nowhere in the briefs, or in the district court's opinion, or elsewhere in the record is there any information about Discount Inn except that it is incorporated in Illinois and its address is in Skokie -- a city separate from Chicago.

The court is left to remind lawyers to "provide judges with some minimal background information." Posner is willing to do some unconventional (and controversial) Internet sleuthing -- as when he researched, sua sponte, heartburn for a pro se litigant in August -- but he can't do it all on his own. Even Posner's Google skills were unable to turn up any useful information about Discount Inn, its location, or its owner.

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